State Highway Commission of Wyoming v. Utah Const Co

Decision Date02 January 1929
Docket NumberNo. 96,96
PartiesSTATE HIGHWAY COMMISSION OF WYOMING v. UTAH CONST. CO
CourtU.S. Supreme Court

Cheyenne, Wyo., for petitioners.

Messrs. Benjamin S. Crow, of Los Angeles, Cal., and William L. Walls and John W. Lacey, both of Cheyenne, Wyo., for respondent.

[Argument of Counsel from pages 194-196 intentionally omitted] Mr. Justice McREYNOLDS delivered the opinion of the Court.

Prior to 1916 the state of Wyoming could not engage in works of internal improvement unless specially authorized by popular vote. During that year the following section was added to article 16 or her Constitution:

'Sec. 9. State Highway Construction. The provision of section 6 of article 16 of this Constitution prohibiting the state from engaging in any work of internal improvement unless authorized by a two-thirds vote of the people shall not apply to or affect the construction or improvement of public roads and highways; but the Legislature shall have power to provide for the construction and improvement of public roads and highways in whole or in part by the state, either directly or by extending aid to counties.'

In 1919 the Legislature passed the State Highway Act, Session Laws 1919, c. 132, which directed:

That there shall be a highway department, consisting of a commission of five members, and a superintendent. The 'commission shall have the power to sue in the name of the 'State Highway Commission of Wyoming,' and may be sued by such name in any court upon any contract, executed by it.' All roads, the cost of which is paid from the state highway fund, shall be constructed in accordance with plans and specifications prepared by the highway superintendent and shall be performed by or under contracts approved and awarded by the commission. Except as otherwise specified 'construction and maintenance of all state highways, including all bridges, and culverts thereon, shall be performed at the expense of the state and by and under the supervision of the commission and the state highway superintendent.' A state highway fund is created, to be in the custody and keeping of the state treasurer, and payments therefrom shall be on warrants based upon vouchers by the highway superintendent.

The original act was amended in 1927 (Laws 1927, c. 61) so as to provide: 'The commission shall have the power to sue in the name of the 'State Highway Commission of Wyoming,' and may be sued by such name in the courts of this state and in no other jurisdiction upon any contract executed by it.'

By a contract dated June 1, 1922, 'between the state of Wyoming, acting through the state highway commission, and Utah Construction Company, a corporation, of Ogden, in the state of Utah, hereinafter called the contractor,' the parties undertook: That the contractor, at his own cost should do all work and furnish all labor, materials, and tools, 'except such as are mentioned in the specifications to be furnished by the state of Wyoming,' and construct a designated highway. 'The state of Wyoming shall pay and the contractor shall receive and accept as full compensation for everything furnished and done by the contractor under this contract and also for all loss or damage arising out of the nature of the work, the action of the elements or from any unforeseen contingencies or difficulties encountered in the prosecution of the work, the prices stipulated in the proposal.' 'Time shall be of the essence of this contract,' and for failure to complete the work as agreed 'damage will be sustained by the state of Wyoming; * * * and it is therefore agreed that said contractor shall pay to the state of Wyoming as liquidated damages and not as penalty, an amount equal to the cost of maintaining the necessary force of engineers and inspectors on the work during the additional time; * * * and the state highway commission may deduct the same from the amount due or to become due to the contractor. * * *' 'The state of Wyoming hereby reserves the right to accept and make use of any portion of said work before the completion of the entire work without invalidating the contract or binding itself to accept the remainder of the work or any portion thereof whether completed or not.' The writing concluded thus: 'In witness whereof the state of Wyoming, acting through its state highway commission, party of the first part, has caused these presents to be executed by its superintendent and the seal thereof to be...

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